Bonum Certa Men Certa

Software Patents Are a Dying Breed in the United States and the EPO Should Take Notice

Software patents are rotting away internationally, but will the EPO adapt accordingly?

Fading away



Summary: A roundup of recent news about software patents in the United States and what this means to Europe, where the patent office is now in a state of transition and must quickly restore quality rather than quantity

TECHRIGHTS spent nearly a decade writing about software patents and my activism against software patents predates this Web site. It's only now, or any time after the 2014 decision on Alice, that considerable headway can be celebrated. The Bilski case (at SCOTUS) just wasn't enough.



Patently-O has this up-to-date list of "Pending Supreme Court Patent Cases 2016" and its author recalls SCOTUS Justice Scalia. "Following Justice Scalia’s death," he notes, "the Supreme Court simplified its docket by denying certiorari to a set of patent cases, including: Arthrex v. Smith and Nephew; STC v. Global Traffic Technologies; ePlus v. Lawson Software, Inc.; Media Rights Technologies v. Capitol One; Alexsam v. The Gap; ULT v. Lighting Ballast Control; and Achates v. Apple."

"All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality."Patent Docs, another patents-centric site, says that the "USPTO Issues Performance and Accountability Report for FY 2015", not quite noting that the USPTO only cares about money, not quality (very much the Battistelli delusion/lunacy).

Patent lawyers, based on this new article from lawyers' media, still try to figure out how to continue fighting the courts over software patents after Alice. It's not easy for them to accept deflation in the number of patents. They think of it like a business, which is antithetical to the patent system (as it was originally conceived a long time ago). Does the US still have an open-handed approach when it comes to software patents, or is it becoming just a stretch of imagination prevalent among patent maximalists who give bad advice to potential or existing clients? As one patent attorney put it the other day, "ITC ruled that two Jawbone patents asserted against Fitbit are Ineligible under Alice/ 101: http://assets.law360news.com/0767000/767622/1078594-575628.pdf"

So even the overzealous and biased ITC, not just the typical courts, is not antagonising software patents? This may be unprecedented.

Patent maximalists over at IAM said this morning that "Chinese companies see US pendulum swinging back, while validity becomes more of an issue at home". It's about PTAB, which is increasingly being used to invalidate software patents even without them being used litigiously. To quote IAM: "Chinese companies may be using PTAB as a handy tool for now, but one defensive risk analyst I spoke to in Shenzhen expressed the views that the prevalence of invalidity challenges in the US is more a temporary opportunity than a ‘new normal’."

Earlier this year we wrote about how a Chinese company had its products seized at a trade show, only to see the case against it dropped altogether. What is this? It sure made the US patent system blush a bit, as though its victims (not the so-called 'pirates' or 'thieves') are Chinese. This is not justice. It's just a bunch of goons storming a trade show because of patents and confiscating actual products.

All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality. There should be no software patents in Europe, for instance, regardless of the spin/wording, e.g. if they're "as such" or not (whatever that even means!). It puts the EPO's reputation at risk. In any patent system, rejection/acceptance rate does not in itself say anything, especially if it wrongly accepts and rejects applications (overworking the examiners means poorer identification of prior art, hence uncertainty, usually resulting in an erroneous grant). Based on sources of ours who are applicants at the EPO (several such people who already have patents in national patent offices), the EPO rejects legitimate patent applications whilst overpatenting e.g. granting patents on software. What message does that send out? What does this mean to the so-called 'results' that Battistelli brags about in him awkwardly scripted speech)? And if courts keep finding "EP" patents invalid, wouldn't that devalue "EP" patents and lead to degradation of confidence? A lot of inventors in Europe are rightly upset at the EPO right now. Their already-granted patents lose value (or perceived value).

The EPO is not a cash cow for Europe if the money comes from Europeans. Ask European patent applicants (not massive corporations from abroad) who spent as much as the value of a whole house how they feel after failing to get even one patent because of EPO misconduct whilst others (massive corporations) receive a fast lane and get "EP" patents in bulk. It's a sordid mess and a sham.

If Christoph Ernst becomes the EPO's President some time this spring (or maybe later this month), then he can use his background in economics/law to amend policy so as to better comply with the EPC (i.e. no software patents). Moreover, for Ernst (or another potential president) the first step to take should be to restore/recognise the status of SUEPO and bring back dismissed representatives. They too expressed concerns about patent scope, even many years ago. SUEPO was right all along.

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